Code (Double) Talkers

Building code screwups may lead to a roll back

If Gov. Susana Martinez’ administration gets its way, New Mexico could be the first state to rescind energy-efficiency advances in its building code. The enhanced 2009 code already passed into law would have made New Mexico a leader in the nation for energy-efficient building standards, but pervasive errors in the printed version of the code could facilitate a step backward. The published version contains so many errors that its detractors are calling for a return to the old, lower-energy-efficiency standards they preferred anyway.

The New Mexico Home Builders Association made a formal complaint to the state Regulation & Licensing Department’s Construction Industries Division June 2, at a public hearing on whether to roll back energy efficient building code enhancements enacted during Gov. Bill Richardson’s administration. Martinez opposed the enhanced code and aimed to roll back the changes, leaving the state with the 2009 International Energy Conservation Code. But at the hearing, the state HBA argued for a return to 2006 codes, with significantly less stringent energy conservation requirements.

Various discrepancies arise between the published 2009 code—which appeared in the state register and in 4,000 code booklets printed up and distributed statewide—and the version state Construction Industries Commissioners and representatives of environmental and trade groups agreed upon after 14 months of negotiations. For instance, the printed code requires a certain type of testing that the parties agreed to exclude, and isn’t specific about several important details, such as the number of fireplaces allowed.

The new code has been a constant source of confusion for both building professionals and state agencies. It was supposed to go into effect at the beginning of the year, but didn’t because it wasn’t printed until February. Then it was scheduled to be enforced on July 1, but the CID has published information with the date of Aug. 1. In the detail-oriented world of construction contracting, all these discrepancies spell disaster, state HBA Executive Vice President and CEO Jack Milarch says.

“We went all around the state and talked to builders in the field and tried to explain all this to them. They were saying, ‘I’ve got a recession going on here; I’m barely making it; the last thing I need is a debate in the field about a window or a furnace and I have to tear the thing out,’” Milarch says. “So that’s where we came to the conclusion that if there’s any way to stay on that 2006 code—they just made hash out of this thing so that’s the best way to do this.”

But errors in the printed code aren’t a valid reason for going back to the 2006 dinosaur, Eric Makela, a senior research scientist at Pacific Northwest National Laboratory, which works with the Department of Energy on building energy codes, says.

“That’s something that could go back to their codes committee and get fixed,” Makela says. “It’s certainly not a reason for a rollback.”

The 2009 code contains many provisions that would constitute the forthcoming 2012 International Energy Conservation Code, which other states are working toward but haven’t enacted yet. If the state rolls back the changes, it will be a different kind of front runner.

“This would definitely be the first rollback,” Makela says.

While the 14-month negotiation process that led to the enhanced 2009 code is widely lauded for its openness and inclusion of all interested parties, the rollback process has been exactly the opposite. Tammy Fiebelkorn, New Mexico representative for the advocacy group Southwest Energy Efficiency Project, says the secrecy surrounding the rollback was an explicit order followed by CID staff.

“When I asked why no one was given the heads up that this was coming, [CID Green Building Coordinator Mary Claire Voorhees] flat-out said, ‘I was told not to tell anyone.’ Direct quote,” Fiebelkorn says.

CID spokesman SU Mahesh declined to comment on that allegation.

Steve Crespin, a former commissioner with the CID under Richardson, says the secrecy surrounding the rollback is “not kosher,” and a stark contrast to the process of developing the code.

“We had a great open discussion for 14 months under the Richardson administration…everyone was invited to the table,” Crespin says. “We batted this around several times, but then this new administration comes in and it’s just outright, ‘We’re not having this, period.’”

Kim Shanahan, Executive Officer of the Santa Fe Area Home Builders Association, which opposes the rollback, calls the process a joke.

“To allow three hours [per hearing] and four locations around the state to have the public hearings…all of that is supposed to be absorbed by these commissioners and they’re presumably going to vote…on the 10th,” Shanahan says. “Compare that to the process that was underway prior, which was months and months and months of people dutifully meeting every week for four hours to negotiate these things with a fine-tooth comb. There’s no comparison.”

Katherine Martinez, director of government affairs at the Central New Mexico Home Builder’s Association, which favors the rollback, defends the shotgun approach. She says the code her group prefers has already been thoroughly vetted—it’s just a matter of deleting the energy-efficient enhancements.

Shanahan suspects the real reason for the aggressive rollback effort is that, while residential builders were active in working on the enhanced 2009 code, commercial builders didn’t take the opportunity to participate.

“When the code actually got published back in July, the commercial builders woke up and realized what happened and kind of cried foul,” Shanahan says. “So I think those are those folks who made the most noise to the Martinez administration, and probably had more of an influence on her campaign than residential builders.”

If the CID votes June 10 to proceed with the rollback, the 14 months of negotiations will go down the toilet, along with trainings on the new code. Fiebelkorn says that would be a shameful waste of both the state’s money and the time and money of businesses who attended the trainings.

“We’ve spent literally hundreds of thousands of dollars on training—19 trainings in 14 cities have already been completed on the new code…it’s a pretty big financial impact, not only on the state but on individual small businesses around the state.”

Mahesh downplays the potential waste of money on training. He argues that only a small fraction of the state’s construction industry professionals had the training, and says the training would be mostly applicable to the code post-rollback anyway.

But even for Crespin, who represented mechanical contractors under his previous CID stint and appreciates criticism of the enhanced code, there’s no question of whether the rollback process itself has been fair.

“Is [the rollback] the right thing to do?” Crespin says, “It might be, but the thing is, as taxpayers, we should have had some input.”